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Killing Cabinet confidentiality destroys democracy

George Williams

The Abbott government has requested cabinet document's from the Rudd government's insulation scheme. Photo: ABC

A stoush has arisen between Attorney General George Brandis and his Labor counterpart Mark Dreyfus over the release of cabinet documents to the royal commission into the home insulation program. It raises important questions of principle about Australian democracy.

The Abbott government's terms of reference for the royal commission are directed squarely at the internal deliberations of the former Rudd government. The commission must examine matters including "the processes by which the Australian government made decisions about the establishment and implementation" of the home insulation program.

It is no surprise then that the commission has summonsed Rudd and his senior ministers to hand over any documents in their possession relating to the investigation. In the normal course of events, they would refuse to provide documents relating to the workings of cabinet. This is consistent with the Royal Commissions Act, which says that a person can avoid handing over documents if they have a "reasonable excuse" for doing so.

Cabinet documents provide the strongest "excuse" known to the law. They are protected by public interest immunity on the basis that good governance, and thus the public interest, demands that such documents be kept private.

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This lasts until the public release of the documents, currently 26 years after their creation, long after the political tensions of the day have faded.

The convention of cabinet secrecy is a central pillar of the Westminster system of government applied in Australia. It is essential that cabinet, the key decision-making forum of government, be a place in which ministers can freely air their differences and debate the full range of policies, laws and actions. This could not occur in the media spotlight. Indeed, without the opportunity for confidential deliberation, it is hard to see how our system of government could function.

The importance of this principle has meant that courts have denied access to documents concerning cabinet deliberations. The High Court has found that access should only be granted in "exceptional circumstances".

It has doubted that this could ever be shown in civil proceedings, and that it might be justified in criminal proceedings only "if withholding the documents would prevent a successful prosecution or impede the conduct of the defence".

It is difficult to see that such "exceptional circumstances" exist here. Without this, former Labor ministers could not be compelled to give the royal commission any cabinet documents.

This position though may be undercut by the Abbott government, which has decided to hand over cabinet documents from Labor's time in office in response to any summons from the royal commission. These would be provided on a confidential basis, with Brandis reserving the right to protect the documents if the commission seeks to reveal them to the public.

Providing these documents to the commission would be regrettable. It would run counter to the strict confidentiality that ought to be accorded to cabinet documents. It would also create a precedent that could do longer term harm to our system of government.

This possibility also raises more general questions about the appropriateness of the royal commission and its terms of reference. Incoming ministers have not as a rule established royal commissions into the actions of their predecessors. It has been accepted that governments are held to account by the people at the ballot box, and here of course Labor has paid for its policy failures through its defeat at the 2013 federal election.

Establishing the commission may bring a short-term benefit to the Abbott government. In the longer term though, the government and our political system may pay a higher price. The creation of this royal commission may give licence to a future Labor administration to establish one or more like inquiries into the affairs of the Abbott government in areas calculated to produce maximum political advantage. It may even do so in a way that again enables access to cabinet papers.

Allegations of corruption or wrongdoing must be investigated, but we do not need a cycle of tit-for-tat inquiries into the decision-making of former governments. This would come at enormous cost to the taxpayer, and introduce a new dynamic of recrimination and retaliation. As former prime minister Malcolm Fraser has said, the introduction of such "payback" into our political system "would ultimately do great damage to Australian democracy".

George Williams is the Anthony Mason Professor of law at the University of NSW.

42 comments

That pea brain Brandis only cares about political advantage. He cares nothing for the rule of law or Parlimentary convention. He is certainly not fit for the office of Attorney General. One day Mr Brandis your hubris will come back to bite you. See how you squeal then.

Commenter

John of North Lakes

Date and time

February 24, 2014, 11:58AM

Brandis and Abbott are crazy to embark on this course. It will undoubtedly come back to bite them. They will not be in Government for ever. The pendulum will swing, as it always does. And then an incoming Labor Government could be forgiven for looking around for an issue which will cause maximum embarrassment to the other side.

Besides, it all seems so futile. Rudd and Gillard have now departed the scene, and the various enquiries already held have established that the states and the employers were largely the ones who failed in their duty of care.

The Royal Commission will cost heaps and tell a largely uninterested population what it already knows!

Commenter

Catherine

Location

NSW

Date and time

February 24, 2014, 12:35PM

You are correct..Brandis would spill the beans on his own grandmother if it benefited him!!

Commenter

Archer

Date and time

February 24, 2014, 2:08PM

Royal Commision into deaths in asylum seeker " camps" springs to mind for the first RC announcement of the next Labor government. Even if it takes two terms to come, payback can be sweet. They asked for it.

Commenter

GeForce

Location

Sydney

Date and time

February 24, 2014, 5:22PM

People in Galss Houses....Labors 1st Royal Commission will hopefully see Morriscum and his boss indicted for aiduing and abetting homicide in the Manus Island camp

Commenter

Brendan

Location

Sydney

Date and time

February 25, 2014, 8:48AM

Absolutley agree that Cabinet documents and discussions and so on must remain confidential!

Commenter

Werry

Location

New Zealand

Date and time

February 24, 2014, 12:13PM

Until now Cabinet has retained sometimes meticulous records of its decision making processes in the full knowledge that these to date confidential discussions can not be used against them by any following government. The decision made by cabinet of course can be.Now that cabinet papers are no longer confidential for at least 26 years it follows then that both parties will ensure no records are kept of cabinet discussions which may be useful to their opponents. And history can no longer judge those discussions.

Commenter

Bernie

Location

Bolwarra

Date and time

February 25, 2014, 4:23AM

Probably the most disrespectful government ever elected in this country...

Commenter

Jamie

Date and time

February 24, 2014, 12:40PM

Jamie not only the most disrespectful Government ever elected in this Country but also the worst.

Commenter

srg

Location

nambucca heads

Date and time

February 25, 2014, 5:08AM

I think both most disrespectful and worst could easily apply to an earlier government, but I do agree that cabinet documents should be secret until 30 years have passed. If that confidentiality is breached it will be a sad day for our Westminster system